September 30, 2006

The Difference Between Prior Restraint and the Sedition Act

If anyone is having trouble distinguishing between the two, the pre- and post-war situation in Iraq provides a helpful illustration.

Under Mr. Hussein, reporters and editors were licensed and carefully watched. Even typewriters had to be registered with the government. During that time, some reporters got by on the conviction that their articles, about the government’s glorious new water projects or certain victory in the war with Iran, were at least patriotic.

versus

Under a broad new set of laws criminalizing speech that ridicules the government or its officials, some resurrected verbatim from Saddam Hussein’s penal code, roughly a dozen Iraqi journalists have been charged with offending public officials in the past year.
Currently, three journalists for a small newspaper in southeastern Iraq are being tried here for articles last year that accused a provincial governor, local judges and police officials of corruption. The journalists are accused of violating Paragraph 226 of the penal code, which makes anyone who “publicly insults” the government or public officials subject to up to seven years in prison.
On Sept. 7, the police sealed the offices of Al Arabiya, a Dubai-based satellite news channel, for what the government said was inflammatory reporting. And the Committee to Protect Journalists says that at least three Iraqi journalists have served time in prison for writing articles deemed criminally offensive.

Licensing is the Miltonic bugbear that keeps prior restraint particularly disfavored in the Anglo American legal tradition, but I suspect some Iraqi journalists are thinking that at least then they knew whether they'd be punished for their writing.

September 27, 2006

4th Circuit 4th Amendment Case

The opinion in Presley v. City of Charlottesville can be found here. This is an extremely interesting opinion that I had to discuss a bit more in depth than what I did over at my personal site. I know that as a law student (especially one dumb enough to use his real name), I probably should refrain making statements to the effect that someone like Orin Kerr made a mistake, but in this particular instance I can't help myself. Mostly, I'm just ticked that I took his word on this one before I read the case. Even amazingly intelligent people don't get everything right. I'll cite to Orin Kerr's brief synopsis and opinion here at the beginning then go more in-depth below the fold. I am republishing the majority of the post that Kerr wrote:

Facts, as alleged in the complaint: Charlottesville, Virginia published a map incorrectly showing a public trail through the plaintiff's property. Plaintiff complained, but the city didn't change the map. Random hikers ended up walking through plaintiff's property because they thought it was public, and they ended up leaving behind trash and making a mess. This caused plaintiff a lot of stress and annoyance. The city offered plaintiff some tax breaks in exchange for an easement that would allow people to come on the property, but the plaintiff refused. She ended up putting lots of "no trespassing" signs on her property, but they were torn down. When plaintiff put up razor wire to try to keep the hikers away, she was prosecuted for it by the city (the prosecution was dismissed). Plaintiff called the police a lot when trespassers would arrive, and the police often came, but that didn't stem the tide. Plaintiff eventually sued the city on the ground that the city violated her Fourth Amendment rights.

Holding, in an opinion by Judge Motz joined by Judge Shedd: The random hikers who walked through plaintiff's property are state actors who "seized" the plaintiff's property under the Fourth Amendment. They are state actors because they were following the government's map. Further, they "seized" the property under the Fourth Amendment because they interfered with plaintiff's property and the plaintiff felt deprived of her property with so many people on it.

My two cents: This seems strange to me. First, I don't think there was a seizure of property under the Fourth Amendment (even if there was a taking under the Fifth). A Fourth Amendment seizure occurs when a state actor keeps a private party out of his property, as in Illinois v. McArthur. But surely a trespass itself isn't a seizure: the Supreme Court has always treated trespasses as searches, not seizures, and has developed the open fields doctrine in cases like Oliver v. United States and United States v. Dunn to determine when a trespass triggers the Fourth Amendment. Under the open fields doctrine, trespasses aren't searches unless they extend to the curtilage of the home; it sounds like the trail was far from the home, and thus was no search. Given the open fields doctrine, it would be rather remarkable if the same trespasses were a seizure. I gather that the claim in the complaint was that there were so many trespassers that plaintiff didn't feel comfortable using her land, but that doesn't sound like a Fourth Amendment claim to me.

Second, it seems jarring to me that the trespassers were state actors. Most circuits have looked to three factors to answer this question: whether the government knows of or acquiesces in the intrusive conduct; whether the party performing the search intends to assist law enforcement efforts at the time of the search; and whether the government affirmatively encourages, initiates or instigates the private action. And they have all held, as has the Fourth Circuit, that mere knowledge isn't enough. Here, it seems to me that this is case of mere knowledge: the city made a map and didn't correct it, causing people to go on to the land, and they knew that this was happening. (There's an interesting question as to whether knowledge means knowledge that this kind of thing was generally happening or knowledge that it was happening in a specific case with a specific hiker, but let's bracket that for now.) But as I read the facts, the city didn't actually want people to go on to the land: when the plaintiff would call the police, they would come and keep the hikers off. And the private parties out for a nice Sunday hike clearly didn't have intent to assist law enforcement. The opinion states in footnote 7 that this is not a mere knowledge case because the government was "more heavily involved" than in the typical case, but it's unclear to me what this means and the Fourth Circuit doesn't seem to provide any analysis of the question.

To be clear, these facts may be actionable on another theory, such as the Fifth Amendment's takings clause. But they don't sound like a Fourth Amendment violation to me.

Unlike Kerr, after reading the opinion I am not surprised at all that the court held that Presley's 4th Amendment rights had potentially been violated. I think that a reading of the opinion makes it clear that a state actor attempted to create a de facto easment across her land and did so willfully and with the aide of private actors.

The reason that the 4th Amendment can be brought into this case is that there might have been a seizure. (This entire case is revolves around whether it was properly dismissed below. This court does not reach the merits.) The dissent, (and Kerr), both seem to think that since this case was a "takings" for public use only the 5th Amendment should be at issue. I think the majority makes a clear case against that which I am surprised that Kerr does not recognize as being an amazingly strong opinion. Here are a few snippets from the case on why both 4th and 5th Amendment claims can be asserted for those of you like me that might see that as a problem:

...both the Fourth Amendment Seizure Clause and the Fifth Amendment Takings Clause address specific, rather than general, harms, and the Court has never held that one specific constitutional clause gives way to another equally specific clause when their domains overlap. The Supreme Court’s conclusion in Soldal that "[s]urely, Graham does not bar resort . . . to the Fourth Amendment’s specific protection for ‘houses, papers, and effects,’" 506 U.S. at 70-71, holds true here as well.

More importantly, even when the same appropriation does constitute both a seizure and a taking, meaningful legal differences continue to separate a Fourth Amendment seizure claim from a Fifth Amendment takings claim. To prevail on a seizure claim, a plaintiff must prove that the government unreasonably seized property. Soldal, 506
U.S. at 71. By contrast, to make out a takings claim, a plaintiff must demonstrate that the government took property without just compensation. Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194 (1985). Because the legal elements of a seizure claim and a takings claim differ, there is no danger that one constitutional provision will subsume the other, even if a single set of facts provides the basis for a cause of action under both.

So we have established that both claims can be made, now we have to see if a 4th Amendment claim can be made. Here are a few good snippets that make that case:

The dissent concedes that Presley, like the Soldals, has alleged a seizure, but argues that in the Soldal seizure there was "no element of public use," post at 22, while the seizure here was effectuated "for permanent public use," id. at 18. In the dissent’s view, "the presence of a public use is a critical fact that distinguishes this case from Soldal. . . ." Id. at 22.

The dissent’s "critical" distinction fails. Although the seizure at issue in Soldal — governmental assistance with an illegal eviction — may not have been for a public use, nothing in Soldal holds, or even suggests, that the Fourth Amendment only applies to seizures for nonpublic uses. Indeed, the Soldal Court reached precisely the opposite conclusion — that the "reason" for a seizure "is wholly irrelevant to the threshold question whether the Amendment applies." Soldal, 506 U.S. at 69. As Soldal explained, "the right against unreasonable seizures would be no less transgressed if the seizure of the house was undertaken to collect evidence, verify compliance with a housing regulation, effect an eviction by the police, or on a whim, for no reason at all." Id. (emphasis added). Whether Presley alleges that the Defendants have seized her property for a public purpose — or by mistake and for no reason at all — the Fourth Amendment applies to the seizure.

I think that clearly states that the 5th Amendment doesn't knock out the 4th Amendment claim. Seizure for any reason at all seems to be very clear language. Now, here is the argument for why this is a seizure that I suppose Kerr didn't find very persuasive; you be the judge:

The district court alternatively held that no seizure had occurred here because Presley was not "completely deprived . . . of her possessory interests in her property." But a deprivation need not be this severe to constitute a seizure subject to constitutional protections. Rather, the Fourth Amendment also governs temporary or partial seizures. See United States v. Place, 462 U.S. 696, 705 (1983) ("The intrusion on possessory interests occasioned by a seizure of one’s personal effects can vary both in its nature and extent."); Pepper v. Village of Oak Park, 430 F.3d 805, 809 (7th Cir. 2005) (noting that "substantial damage to [a] couch" was a seizure); United States v. Gray, 484 F.2d 352, 356 (6th Cir. 1973) (holding that temporarily removing rifles from a closet to copy down their serial numbers was a seizure).

In fact, the Supreme Court has held that a seizure of property occurs whenever "there is some meaningful interference with an individual’s possessory interests in that property." United States v. Jacobsen, 466 U.S. 109, 113 (1984).

I honestly don't understand why Kerr isn't persuaded by this line of reasoning. As I mentioned earlier this isn't a case where the court is deciding the merits; the question is whether a case can be made that there was a seizure. I think the reasoning above is an excellent argument.

Now we get to the real crux of Kerr's disapproval. He states that it is "jarring" to him that the trespassers were state actors. For some reason he seems to have missed a huge claim that is made against the state which is that the state stopped Presley from raising a fence and prosecuted her for doing so after they had tried and failed to get her consent to the easment. This is the "heavy involvment" that Kerr missed:

Of course, it is private individuals, not City officials, who have actually interfered with Presley’s possessory interests here. Although private actions generally do not implicate the Fourth Amendment, when a private person acts "as an agent of the Government or with the participation or knowledge of any governmental official," then the private person’s acts are attributed to the government. Jacobsen, 466 U.S. at 113 (internal quotation marks omitted). The government need
not compel nor even involve itself directly in the private person’s actions. For example, in Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 614-15 (1989), the Supreme Court held that "breath and urine tests required by private railroads" implicated the Fourth Amendment when the railroads voluntarily complied with federal regulations
governing such tests.

As in Skinner, several factors in this case "combine to convince us that [the Defendants] did more than adopt a passive attitude toward the underlying private conduct" and that therefore the acts of private persons are attributable to the Defendants. See id. at 615. At some point, the Defendants knew that their map was erroneous.8 They also knew that the Rivanna trail map would encourage public use of the trail — this was, after all, the map’s purpose. Finally, Defendants also knew that the City’s involvement would communicate to trail users that there were no legal barriers to their use of the entire trail, including the portion that cut through Presley’s property. Cf. Rossignol v. Voorhaar, 316 F.3d 516, 525-26 (4th Cir. 2003) (seizure attributable to the government when official "gave ‘significant encouragement’ to its [allegedly private] perpetrators").

Nevertheless, despite this knowledge, the Defendants assertedly did nothing to correct their error, and consequently, in reliance upon the erroneous map, private individuals trespassed onto Presley’s yard. Moreover, when Presley attempted to protect her own property, the Defendants initiated a meritless criminal prosecution against her to force her to take down the razor wire. See Soldal, 506 U.S. at 60 n.6 (noting that Fourth Amendment is implicated when government officials prevent lawful resistance against seizures effected by private persons). These factors "are clear indices of the [Defendants’] encouragement, endorsement, and participation, and suffice to implicate the Fourth Amendment." Skinner, 489 U.S. at 615-16; see also United States v. Walther, 652 F.2d 788, 791 (9th Cir. 1981) (noting that a private search is attributed to the government if the government is "involved . . . indirectly as an encourager of the private citizen’s actions").

Hopefully, this information will help show that this opinion was well written and made quite a bit of sense. I think the court got it right on the issue of the 4th Amendment.

September 25, 2006

Subsidizing Quality

In the bewailing and bemoaning of the failure of the Doha trade talks, a consistent assumption is that the only reason for the United States and Europe to maintain subsidies (by the former) and tariffs (by the latter) on farm products is naked protectionism, a motive based on special interest politics and ignorance of economics. Some have argued that the WTO should be cognizant of differences in environmental and labor standards that make products from countries with different standards non-interchangeable at an ethical level; if the U.S. pays a living wage to tomato pickers and bans the use of certain pesticides, while Indonesia does not, the U.S. should be able to pay subsidies to American farmers to make their prices competitive with Indonesians'.

But there's a potential second argument in favor of subsidies, though not tariffs: keeping high quality food affordable. Tariffs mean that all prices will be higher, because the cheaper foreign fruits are taxed to be comparably priced with the more expensive domestic food. With subsidies, on the other hand, the U.S. can make the produce of local farmers possible for middle class people to purchase. According to foodies, plants that are bred to endure long-distance transportation are less tasty than ones bred purely for flavor. In its insistence that Chilean blueberries separated from the consumer by several days and several thousand miles are the exact same as the ones grown just outside the city limits, trade law strikes me as taking the kind of broad market perspective usually reserved for defendants in antitrust lawsuits.

September 24, 2006

Today / 09.24.06

The Rule of Democracy

There has been much about military coups in the news lately: Thailand's while the prime minister was at the UN; Venezuela's prime minister maintaining a grudge against Bush for supporting a failed one; the debate over whether General Musharraf*, who came to power through one, is really the best person to lead Pakistan. I wondered whether someone with much more knowledge than I about international law could inform me on the protocol for dealing with coups in a foreign nation. Ought the American government feel obligated to automatically condemn military coups as a subversion of democracy, or (in cases where the previous government hadn't had popular support at election time, as with a monarch) as destructive of order and the rule of law?

We seem to have a fairly instrumental view of coups. Ones that put U.S.-friendly regimes in place, as in Pakistan or Venezuela, are good; ones that do not, like the very short lived 1971 Communist coup in Sudan, are bad. Hence "the muted response to the coup from the United States and Britain, which deplored the damage to Thailand’s young democracy but did not call for Thaksin’s restoration to office," because Thaksin is viewed as doing a poor job fighting the Islamic insurgency in southern Thailand. I envision the note to the prime minister, now exiled to London, as thus: "Dear Thaksin Shinawatra, Sorry to hear about your being deposed, especially after that big military push to deal with the terrorists. Dealing with militants was taking a lot out of you and at least it was a bloodless coup, which I find preferable to the other type. Be consoled that the generals say they'll return control to civilians in two weeks, even if you won't be among those civilians. You can say what you like about one night in Bangkok, but I'd take the West End girls. Best, G.W. Bush."

* In totally unrelated news, Musharraf reportedly underwent cardiology testing in East Texas, but since it happened in Paris, I feel confident in saying that no one I know was involved.

September 22, 2006

Going Retro

On Tuesday, my Supreme Court will decide Burton v. Waddington, 05-9222. The question is simple: does the rule announced in Blakely v. Washington apply retroactively to habeas challenges to a conviction? The question may be answered with a "yes" if the rule announced in Blakely was not a new one, but it was preordained by Apprendi, or the rule is a watershed rule of criminal procedure such that it alters our belief in the integrity of justice system. There is no circuit split on the issue. However, Tom Goldstein has written an excellent brief for the petitioner as his Court appointed counsel.

Below the fold I am reposting an executive summary that Justice Thomas distributed to the other Justices in the class. The centeral question I want answered is how Blakely was not governed by Apprendi? How can Blakely possibly be a new rule? In Summerlin (decided on the same day as Blakely) we held that Ring was not retroactive because it was not a substantive rule and it was not a watershed rule. Implicit in that was that Ring was not preordained by Apprendi, but there is no direct mention of that. This would help Justice Thomas' position that Blakely is not retroactive.

UPDATE: By a vote of 7-2 we held that Blakely was a new rule, but by a vote of 5-4 (Scalia in the majority) we held that Blakely's beyond a reasonable doubt reaquirement was a watershed rule of criminal procedure. A bit of a surprising result. I also want to note that there were some votes for dismissing the cert as improperly granted because of questions about the appropriateness of this case to decide the issue.

QUESTION PRESENTED

1. Is the holding in Blakely a new rule or is it dictated by Apprendi?

2. If Blakely is a new rule, does its requirement that facts resulting in an enhanced statutory maximum be proved beyond a reasonable doubt apply retroactively?

BACKGROUND CASES OF NOTE

This all began with the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), where the Court held that “the Due Process Clause of the Fourteenth Amendment requires that a factual determination [other than a prior conviction] authorizing an increase in the maximum prison sentence for an offense. . .be made by a jury on the basis of proof beyond a reasonable doubt” (unless the fact is admitted by the defendant).

In Blakely v. Washington, 542 U.S. 296 (2003), the Court held that the State of Washington’s sentencing scheme was governed by Apprendi. Petitioner pleaded guilty to kidnapping his estranged wife. The facts admitted in his plea, standing alone, supported a maximum sentence of 53 months, but the judge imposed a 90-month sentence after finding that petitioner had acted with deliberate cruelty, a statutorily enumerated ground for departing from the standard range. The Supreme Court held that the statutory maximum for Apprendi purposes is the maximum sentence that a judge may impose based on the facts proven beyond a reasonable doubt by a jury or admitted by the defendant. In this case, the judge could not impose the 90-month sentence; therefore this violated the defendant’s Sixth Amendment right to a jury trial.

RETROACTIVITY RULES

A brief explanation of a habeas corpus petition may be helpful. After a state prisoner has exhausted his direct appeals, he may challenge his continued detention in federal courts on the ground that his continued detention violates his U.S. Constitutional rights. A habeas petition is considered a collateral review of a final conviction, as opposed to a direct review by state appellate courts or the Supreme Court of the United States. A conviction is final when the prisoner exhausts his last direct review (usually when a state high court or the SCOTUS denies review). In Teague v. Lane, 489 U.S. 288 (1990), the Supreme Court held that a new rule applies to all cases pending on direct review. But to determine retroactivity of a new rule on collateral review, there are several questions that need to be answered.

1. Is the rule substantive or procedural? A rule is substantive if it alters the elements of a crime, for example. If it is substantive, it applies retroactively and there is no Teague analysis. For a discussion of the substantive/procedural distinction, see Schriro v. Summerlin, 542 U.S. 348. Blakely appears to be procedural.

2. If procedural, then is the rule a new one or one that was preordained by prior decisions of the Supreme Court? This is the first question presented by the case before us. We must decide whether the rule in Blakely is a new one, or if the unlawfulness of the sentence was apparent to all reasonable jurists, and therefore dictated by Apprendi. If Blakely was dictated by Apprendi, then Burton’s conviction should be reversed on habeas, along with all other prisoners convicted after Apprendi whose sentences were enhanced by judicial fact findings.

3. If the rule is a new one and not one dictated by prior precedent, then it does not apply retroactively unless it falls under one of two exceptions. The two exceptions are: (a) Does the rule remove certain conduct from the realm of criminal law? (b) Did the rule announce a watershed rule of criminal procedure? This second exception is before us in this case. A rule is watershed if it alters “our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction.” Teague, 489 U.S. at 312.

In Ring v. Arizona, 536 U.S. 584 (2003), decided after Apprendi but before Blakely, the Court struck down Arizona’s sentencing scheme that allowed a judge, rather than a jury, to find the existence of aggravating factors that led to a death sentence. In Summerlin the Court held that Ring was not retroactive under Teague, but discussed only the issue of whether it was a watershed rule of criminal procedure. The Court held it was not.

September 21, 2006

Elitist Legal Scholarship

I read Brian Leiter’s Why Blogs Are Bad for Legal Scholarship and I couldn’t help but be disgusted with his elitism and his self-serving hypocrisy. He makes it very clear that there are only a few people who are “good enough” to be considered legal scholars and that the rest should just go crawl under a rock somewhere and keep quiet. Apparently, he deems himself to be one of the anointed ones that has a right to be heard from since he felt it was okay to let Yale to publish this particular piece.

I’ll start this response out with some words from Leiter himself so that you can decide later whether he, as a blogger with over 600,000 visitors in the last year, (not to mention his other blog which has had 3 million visitors since the beginning of this year), is dumbing down legal scholarship:

…blogs have been bad for legal scholarship, leading to increased visibility for mediocre scholars and half-baked ideas and to a dumbing down of standards and judgments.

I might have to agree with him if his arguments weren’t so illogical.

At the beginning of this paper there are a few moments when it seems as if he may actually make a point. His main premise revolves around a concept defined by Timur Kuran and Cass Sunstein termed an “availability cascade”. It is a beautifully articulated concept which I’ll let them define:

…a self-reinforcing process of collective belief formation by which an expressed perception triggers a chain reaction that gives the perception increasing plausibility through its rising availability in public discourse. The driving mechanism involves a combination of informational and reputational motives: Individuals endorse the perception partly by learning from the apparent beliefs of others and partly by distorting their public responses in the interest of maintaining social acceptance. Availability entrepreneurs—activists who manipulate the content of public discourse—strive to trigger availability cascades likely to advance their agendas.

Of course, any of you that have any exposure whatsoever to blogging will recognize immediately where Leiter is going with this. Essentially, bad legal beliefs may formulate a following by being repeated often across the blogosphere. Now, this is an interesting question, (although it is far from novel), but the rest of Leiter’s paper does nothing to back up this proposition.

He starts off explaining how this will happen by pointing out that he doesn’t like student-edited law reviews and that he thinks those in the legal field are far inferior to those that spend their time on philosophy. I’m not kidding; he actually writes that if he were to try to fool people on his philosophy blog people would stop reading it because they would know he was a charlatan. However, those of us in the legal field are easily led astray on blogs because of law reviews and journalists. If you’re having a problem following this logic, don’t worry, it isn’t logic at all.

In Leiter’s view, law reviews are susceptible to less than stellar articles that are in essence the result of the cascade of bad information on legal blogs, whereas philosophy journals aren’t susceptible to this problem because they are peer-reviewed. I’m not quite sure why Leiter posits that philosophers aren’t influenced by availability cascades, but that is outside the scope of this response. Instead let us return to the actual theory of Leiter’s paper. At this point we could surmise that “blogs are bad for legal scholarship because law reviews are easily steered by public discourse”.

But wait; are student-edited law reviews a new development in the legal world? Of course they aren’t, so apparently Leiter’s theory would have to be “blogs are bad for legal scholarship because law reviews are easily steered by public discourse and blogs steer public discourse”. Now that is a really interesting proposition, but one which is entirely without any backing. (At least in this paper.) For the moment we’ll give Leiter the benefit of the doubt, maybe blogs are currently directing public discourse. The question that I’m struck with now is whether blogs are directing discourse more than previous forms of media. I doubt that given the lack of any “barriers to entry” in the blogosphere and the enormous barriers that existed when only the rich controlled media outlets. Maybe his second point makes more sense.

His second reasoning is that journalists are now so enamored with legal blogs that they are asking people like law professors to tell them what the law means. I guess I should add “apparently more expert law professors” as Leiter did, but I’m at a loss as to why law professors are only apparently more expert than journalists on legal issues. This follows the same cascade theory is which journalists see so many legal blogs discussing an issue in a particular way that they repeat it to the general public. Once the general public is inundated with this particularly bad view of the law, more and more weak scholarship based on this view will show up in law journals. Apparently, as Leiter mentioned before, the legal community is a push-over for ideas that the public takes on face value.

Although this at least a better proposition than the first, it is still far from the mark. Let us once again return to the point of this paper which could now be written as “blogs are bad for legal scholarship because law reviews are easily steered by public discourse, journalists steer public discourse, and journalists are steered by blogs”. I’m truly at a loss as to why Leiter would even waste our time by writing this down. Maybe it is totally true, even so, why should I care? The only new idea here is that journalists are the “middle-men” that are destroying legal scholarship. Even if that is so, how is it any different from the way journalists influenced law reviews in the past? The only argument that Leiter can even stand on he has yet to make and that is of course that it really isn’t blogs that are the problem. (Which seems to negate the whole point of his paper.) The problem is that people are paying attention to the wrong blogs.

Here we discover exactly what it is that is bothering Leiter. No longer does Leiter hide his real reasoning, instead he admits that he just doesn’t like the legal bloggers that are being read. Here is an excerpt that makes it very clear what Leiter’s problem really is:

If the leading law blogs were written only by the leading scholars, the availability cascades that occur would be more likely to raise, rather than lower, the level of scholarly discussion. But that is, unsurprisingly, not the case. The most visible and highly trafficked law-related blogs have one, and only one, thing in common: they were started relatively early in the “blog boom,” that is, in 2001 or 2002. (Many, but not all, also tilt noticeably to the right.) Latecomers, like the Becker-Posner Blog or the University of Chicago Law Faculty Blog, which generally have much higher intellectual content, get nothing like the traffic of the early arrivals.

As you notice he totally negates everything he said previously in this paper. Availability cascades are a good thing if you consider the people that start them to be scholars, but if you don’t like what they write then they are bad. I find it particularly disgusting that he makes a subjective assertion that the “latecomers” have “much higher intellectual content”. Leiter apparently thinks that his view of whether a writer is a scholar or not should be determinative of whether they should influence the legal community.

I think it is completely clear that Leiter misses the good old days when the academic elite had complete control over the public discourse of legal issues. They were the only ones in the law reviews and it was the law reviews that set the tone. Apparently it was okay back then for student-edited law reviews to be “tricked” into publishing articles that were a product of the availability cascades of the time. Now that any legal writer can write something that might influence the legal community we need to fix this problem. He wouldn’t want some “low-brow” idea to influence the law. Instead, he is a proponent of “philosopher kings” ruling the masses.

He makes this very clear at the end of his paper with his argument against a market approach to legal scholarship. Here is Leiter in his own words:

The marketplace, through the price mechanism, may give us knowledge of what people want, but what people want is hostage to their ignorance and irrationality, the latter two characteristics often exploited by the marketplace. The knowledge we gain from markets, in consequence, is of a peculiar kind: it is not knowledge of what makes people better off or of what makes for good lives, but rather knowledge of the current psychological condition, stunted or manipulated or otherwise, of the populace.

We’re just to accept as fact that Leiter isn’t held hostage by his ignorance and irrationality like the rest of the American populace. That sounds like a half-baked idea to me and I’m not willing to dumb down my standards.

September 20, 2006

The Other Reciprocity

Below, co-blogger Sean makes an excellent point about the kind of reciprocity that tends to get ignored in discussions about the Geneva Conventions: that while the nations who care about observing prohibitions on ill-treatment (Canada, the EU, et al.) are unlikely to conflict with the U.S. and thus hold our soldiers captive, they are likely to be necessary partners in detecting, preventing and punishing terrorism, and if they are squeamish about how we treat detainees, they may not be fully and wholeheartedly cooperative in fighting our enemies. This may lead to less cooperation on our side, and a general breakdown of "mutual action, influence, giving and taking, correspondence, etc."

This is something that John Hawkins and other Bush supporters prefer to ignore, in favor of going on about how Al Qaeda never will treat our soldiers humanely, so we needn't worry about the reciprocity issue. "Granted, the Geneva Convention could be of use in the unlikely event that we were to get into a war with Belgium, Italy, Spain or some other Western European nation." Prof. Glenn Reynolds remarks, "There are arguments for treating terrorists as if the Geneva Conventions applied, but reciprocity isn't one of them and, as Hawkins notes, the argument from reciprocity actually cuts the other way."

Al Qaeda's predilection for cutting off civilians' heads doesn't indicate that they're going to treat soldiers any better, and we're probably not going to war with any nation that does observe the Geneva Conventions scrupulously. But we still have to worry about how those nations regard our treatment of prisoners. Already some countries refuse to extradite accused criminals to the U.S. if the death penalty may be applied to such persons. What happens when Canada & Co. think that America is going to engage in "aggressive interrogation techniques," without even a trial to determine if the subject of waterboarding has committed a crime?

September 19, 2006

Policy v. Law

There are many times and many places where my esteemed colleagues and I can argue over the finer points of law which form this great nation. It is possible to argue that some of what the Bush administration is doing that seems clearly illegal may in fact be legal. For just a moment I want to step away from this legal back-and-forth and point to a common sense viewpoint that we should all agree on. This may be hard for some of you older folk out there because you'll have to remember a "fairy-tale" you heard as a child, but I'm sure you'll remember "The Boy Who Cried Wolf".

What can that possibly have to do with our policy on terrorism?

Here is a snippet from a news story released today that details an opinion from a Canadian commission:

But O'Connor recommends that in the future, information should never be provided to a foreign country where there is a credible risk that it will cause or contribute to the use of torture.

Most of the judge's 23 policy recommendations centered on the RCMP and emphasized the need to improve the force's internal policies for national security investigations and the sharing of information with other countries.

[Just so you know, the commission found that we had shipped off a Canadian national to Syria where he was tortured and that this man had no connection to terrorists.]

We have just made it harder to receive information from a country that shares a border with the United States. No policy that makes it harder to get information on potential terrorists is a good policy. To hell with the question of whether it is legal or not, what is legal is not always right.

September 16, 2006

Today / 09.17.06

Raceless in Seattle

As Justice Thomas, I have voted with the majority of my colleagues to strike down Seattle's use of race to strike a rough balance in its public schools. While I believe that the use of race requires the strictest of strict scrutinies, such that only preventing anarchy or bodily harm can justify it, my colleagues believe the Seattle system is impermissible even under the most liberal reading of Grutter. The program is nothing more than an impermissible racial balancing that Grutter specifically prohibited.

I will write a more detailed post on this down the road once my co-Justice and I prepare a first draft of the majority opinion. However, at this early stage, the judgment of the Court is clear. The judgment of the United States Court of Appeals for the Ninth Circuit was/is/will be reversed and the case remanded for further proceedings. IT IS SO ORDERED.

September 15, 2006

Re?interpretation

I just wanna know: does the U.S. currently have an interpretation of Common Article III of the Geneva Conventions that gives "people in the field trying to question terrorists ... clear legal definitions"? If so, what is it and how can Bush claim there's not clarity? if not, how can what Bush is proposing be a reinterpretation? CNN -- both sides and no background.

And now I have to say something nice about its rival Fox News, because the latter does provide useful information. "Warner's bill, unlike the one favored by the president, would avoid setting up a separate legal category for so-called CIA interrogation techniques deemed as aggressive." This implies that Bush is engaged in re-interpretation, nor does it sound like there is much ambiguity in the existing interpretation, which presumably did not distinguish aggressive CIA interrogation techniques from prohibited practices.

To my mind, the obvious compromise bill is one that first makes a factual determination as to whether Geneva violators sincerely misunderstood the law, and if so, gives them a rap on the knuckles and proceeds to make the law very explicit and with heavy penalties for violation. Or the compromise could go in a different temporal direction, and if the violators knew they were breaking the law, punish them as fully as possible and then re-write the law so what they did is acceptable in very limited, controlled circumstances. I doubt that the Bush Administration would accept either, however; they want to protect past torturers who are believed to have produced useful information, as well as enable future torture to get more such information. (Looks like KSM, previously thought missing, has been found now that he's being moved from a CIA secret prison to Gitmo in preparation for being tried. I hope Human Rights Watch is satisfied now!)

September 14, 2006

More Later

I freely confess myself to be frequentlybewilderedby Maggie Gallagher. For example, what is the connection she sees between Andrew Sullivan's arguments in favor of gender-pairing equality, and his claim that the Prosperity Gospel violates Jesus's call to divest oneself of earthly ties to follow him? Nonetheless, I appreciate her notifying bloggers about "Marriage and the Law: A Statement of Principles." I will read and respond to it more completely later, and am tempted to recommend that anyone on my journal who wants to knock out a quick Note should just take this apart.

For now, I will say only that if this truly was produced by a group of people who "do not all agree on individual issues, from the best way to reform unilateral divorce to whether and how the law should be altered to benefit same-sex couples" and "seek to work together across the divisive issue of gay marriage to affirm the basic importance of marriage to our children and to our society," I'm surprised by the repeated appeals to have as many children as possible raised by their biological mother and father.

I consider myself to be in favor in marriage; heck, I was just trying to work out a way for Angelina Jolie and Brad Pitt to wed while remaining true to their political principles. But I also can look at a pregnant woman and say, "You are right to have your child adopted by a loving, committed gay couple instead of trying to find the guy who knocked you up and raise that child in the resulting chaos of two street kids' lives." Nor do I think that a child born of surrogate pregnancy, so long as the surrogate was not financially compensated, is worse off than one created by sex between a married couple. Fetishizing the connection, between reproductive sex and child-rearing by two loving parents who are committed to each other, strikes me as destructive of children's best interests because of the implicit deprecation of adoption and other routes to placing children with parents who are most likely to care well for them. If a woman feels that she and the man who got her pregnant are not prepared to raise children, yet is told by law and society that her child will be worse off in any other situation than having the two of them married and parenting, she is less likely to consider her situation in a truly responsible way. Either abortion, to avoid the dilemma by killing its crux, or quick and unstable marriage, will look preferable to open adoption.

September 13, 2006

You Can't Spell War Crime Without War

For those, particularly on the right, who like to complain that human rights groups never go after the worst offenders (the country reports by said organizations to the contrary), the latest news from Amnesty International may be welcome. After a report accusing Israel of committing war crimes by deliberately targeting civilian infrastructure in Lebanon, Amnesty has issued one that declares, "Hezbollah's rocket attacks on northern Israel amounted to deliberate attacks on civilians and civilian objects, as well as indiscriminate attacks, both war crimes under international law."

What confuses me is terming either side to have committed a war crime. Amnesty International's Secretary General earnestly says, "Justice is urgently needed if respect for the rules of war is ever to be taken seriously." But the rules of war never were taken seriously in this conflict. It began with kidnapping and murder of Israeli soldiers by people who were not Lebanese soldiers, then escalated with the acts Amnesty now criticizes. The Lebanese government failed in its responsibility to arrest and try the kidnappers and murderers for their crimes -- not war crimes, just plain ol' regular crimes. To call an act a war crime immediately politicizes it; Israel's partisans insist that it hit only infrastructure to hurt Hezbollah, while Hezbollah's fans claim that its rocket attacks were a necessary response to the Israeli strikes.

Traditional crimes are so much simpler and almost comforting after that tangle. Kidnapping and murdering one's opponents can be motivated by politics, but they are not the actions common to modern warfare and thus easier to keep in the realm of crime. When committed by state actors -- one could construe capture and indefinite detainment without trial as kidnapping, and assassination of terrorists as murder -- they might be violations of international law, but they are not crimes as they would be when committed by non-governmental agents. Governments' monopoly on the use of force is complicated when exercised outside their own borders, and can result in a war crime, yet remains distinct from felony and misdemeanor.

Still Retain Their Dignity as Free Persons

Noting that Ann Richards died today, I almost missed the article on Tyron Garner -- the less-known plaintiff in Lawrence v. Texas -- having passed as well. His death occurred on Monday and was due to meningitis.

Unrelatedly, while the Federalist Society likes to boast that it had people arguing both sides of Raich before the Supreme Court, Texans can boast that our governor's race runs the full gamut of opinion on marijuana's legality: Grandma Strayhorn, Gov. Goodhair and Chris Bell all oppose it; Kinky wants to decriminalize but not legalize it; and inevitably, the libertarian candidate whose name I cannot recall wants to legalize it as the first step to legalizing all drugs.

September 12, 2006

Jolie Way to Wed

Dear Ms. Angelina Jolie,

I assume that when your partner states, "Angie and I will consider tying the knot when everyone else in the country who wants to be married is legally able,” he refers to marriages unrestricted by the genders of the parties, and not to marriages unrestricted by age, familial relationship, species, etc. With that in mind, may I recommend that you get married in Massachusetts?

If your Boston wedding brings as large an entourage of press and gawkers as your Namibia labor did, it may encourage other states that hope to boost their tourism industries to follow suit. This seems more likely to be an engine for change than the prospect of another celebrity couple with money and lawyers sufficient not to need governmental approval of their union. (I'm guessing that you could take off more than the 12 weeks required by the Family Medical Leave Act to spend time with your infant, without being worried that you'd lose your job and thereby your individual health insurance, and not have a spouse's coverage to rely upon.)

However, if you want to be treated by the law exactly as a same-sex couple would be, there are a couple of kinks to note:

A 1913 Massachusetts law, which refuses marriage to a non-resident couple if the marriage would not be recognized in their home state, is being enforced in an interesting fashion that puts legal realism on display. Gov. Mitt Romney has required town clerks to follow it, but only by their own level of preference in determining the truth of a couple's claim. Clerks are entitled to ask for proof of residency as long as they demand it of all couples regardless of the gender pairing. Realistically, out-of-state same-sex couples can get married in some parts of Massachusetts but not others, and since the idea here is to highlight inequality, trading on your heterosexual privilege by getting a license from a clerk who might not issue one to a pair of lesbians won't work.

So you and Mr. Pitt must find a time to settle down in Massachusetts, whether during a movie shoot or just between tours of developing nations. (I don't know of any place outside the "West" of the Northern Hemisphere that currently allows same-sex marriage, though if you wait until December, you can get hitched in South Africa.) The residency requirements are not onerous -- you don't even have to buy property. Simply lease a residence and have the utilities put into your name, present a copy of the lease and the bills to the clerk, and your residency is established. Admittedly this trades on another type of privilege, that of geographic mobility and economics. However, since homosexuals are supposed to be disproportionately privileged in these areas*, you needn't feel guilty about it.

After that, easy sailing. Blood tests no longer are required, and even if you and Mr. Pitt turn out to be cousins, your union would be permitted in Massachusetts. File your application, pay the fee, wait three days, go back for the license, and then get married in the 60 days for which it's valid. For good measure, I'd recommend picking an area of the state that was polling as less friendly to same-sex marriage -- Middleborough's likely to be a nicer place for a wedding than Boston would be.

Best,
PG

PS: I'm fairly sure that my parents won't accept Mr. Pitt's excuse for long-term shacking up and child rearing sans mariage, so perhaps I could stave them off by insisting that I'd at least have to wed in a place that recognizes the unions of my queer brethren and sistren. More money into the Massachusetts economy thanks to Goodridge, even if her marriage doesn't last.

* I suspect selection bias. People who are able to move to more tolerant parts of the country and who are more educated -- which tends to equal higher income -- probably are more likely to recognize and admit themselves as something other than straight.

Definition of death

It has always been one of those places in law where none of us can agree on a definition. What is death? When can we be assured that our loved ones are actually dead? Am I willing to give rights to my body parts in the case of death, or am I afraid that they will declare me dead before I'm done with them?

These questions consistently pop up in our culture given the amazing advances in science in recent decades. Now that we can monitor brain activity to see if there is any function left we thought the answer was close on the horizon. Nothing could have been further from the truth.

Today a news story was printed in The Guardian which is going to start challenging everyone's previous assertions. It may well be that death as we have known it is a thing of the past.

I know you're thinking that if this is such a big deal it would be the top story on every news station and in every paper around the globe. Maybe now is the time to start thinking about the way in which our "news" is presented to us. We'd rather talk about the horrible acts that happened over five years ago rather than look forward to the future. You can't blame the news media for this; it is the fault of all of us as consumers. Death and destruction sells, life and rebirth is for those "saps" out there that still get chills when walking into Disneyland.

Well, call me a sap, I do still get chills when I walk into Disneyland and I still believe that miracles occur.

Today a new chapter is being written on the definition of life. It has been shown, (methodological tests are still underway), and that people that were in Persistent Vegetative States (PVS) can be brought back from what before was known as "brain death". Here are a few snippets from the article that should shed a bit of light on the subject:

For three years, Riaan Bolton has lain motionless, his eyes open but unseeing. After a devastating car crash doctors said he would never again see or speak or hear. Now his mother, Johanna, dissolves a pill in a little water on a teaspoon and forces it gently into his mouth. Within half an hour, as if a switch has been flicked in his brain, Riaan looks around his home in the South African town of Kimberley and says, "Hello." Shortly after his accident, Johanna had turned down the option of letting him die.

Across three continents, brain-damaged patients are reporting remarkable improvements after taking a pill that should make them fall asleep but that, instead, appears to be waking up cells in their brains that were thought to have been dead. In the next two months, trials on patients are expected to begin in South Africa aimed at finding out exactly what is going on inside their heads. Because, at the moment, the results are baffling doctors.

..."Since Louis, I have treated more than 150 brain-damaged patients with zolpidem and have seen improvements in about 60% of them. It's remarkable."

After Louis' awakening was publicised in the South African media, Dr Ralf Clauss, a physician of nuclear medicine - the use of radioactive isotopes in diagnostic scans - at the Medical University of Southern Africa, contacted Nel to suggest carrying out a scan on Louis. "The results were so unbelievable that I got other colleagues to check my findings," says Clauss, who now works at the Royal Surrey County Hospital in Guildford. "We did scans before and after we gave Louis zolpidem. Areas that appeared black and dead beforehand began to light up with activity afterwards. I was dumbfounded - and I still am."

No one yet knows exactly how a sleeping pill could wake up the seemingly dead brain cells, but Nel and Clauss have a hypothesis. After the brain has suffered severe trauma, a chemical known as Gaba (gamma amino butyric acid) closes down brain functions in order to conserve energy and help cells survive. However, in such a long-term dormant state, the receptors in the brain cells that respond to Gaba become hypersensitive, and as Gaba is a depressant, it causes a persistent vegetative state.

It is thought that during this process the receptors are in some way changed or deformed so that they respond to zolpidem differently from normal receptors, thus breaking the hold of Gaba. This could mean that instead of sending patients to sleep as usual, it makes dormant areas of the brain function again and some comatose patients wake up.

"The results so far could be potentially very important," says Meyer. "We have never before spoken of damaged cells in the brain going into hibernation - we have thought of them as necrotic, or dead, cells. But we know cells can go into hibernation in the heart and thyroid, so why not the brain? If there are hibernating cells in damaged brains, it may be that this drug helps to wake them in some people."

Hibernation, this in itself is both a mystery and a tragedy. Those of you who follow legal news are surely aware of the infamous Schiavo case in which her husband "won" the right to allow his former wife to die because she was "brain dead". What if she wasn't? What if this $5 pill could have revived her? What about all the other families out there that have made similar choices based in the recommendations of their doctors?

I've heard some commentators proclaim that doctors and lawyers that gave advice that led to families "pulling the plug" are in for some serious litigation, but I find that doubtful. You can't predict a miracle.

But what are we talking about here? Is this really a miracle? Is this really all that different from the issues that we have discussed on this subject in the past? I suggest that it absolutely is.

Nobody that I can find has reached the obvious conclusion that comes from this miracle breakthrough; what about the people who "die" every day from natural causes? What about the 40-year-old that has a heart attack? Is he technically dead, or is his brain just in hibernation awaiting revival? His brain has stopped working just like the patients in this article, might it not be possible to awaken that brain again?

What then becomes the definition of death?

Nobody has the answer to that question and that is what might make this the story of the century. If nothing else, it might make the world believe in miracles again.

Pleadings

Jim Dedman is not to be confused with videoblogger Jay Dedman, though the line between the two may have thinned now that Baylor Law grad Jim has taken to movie-making. Where his blog once resided is currently the website for his film Pleadings, complete with iPod downloadable trailer. (And what used to be the Pleadings website now appears to be squatter territory.)

I liked the Pleadings script, though I haven't seen the movie and the trailer looks like a mix of reality TV cinematography and Sundance style acting. As the movie is getting submitted to Robert Redford's baby, I suppose the latter aspect is appropriate. For those who'd like to see some big screen law drama that isn't a Grisham novel, look for Jim's.

CORRECTIONS: The official site is pleadingsmovie.com, and what I thought was squatter territory just hasn't yet been redirected there. The style might also be considered sort of Dogme 95, something I didn't get because a) I saw only the trailer and b) the sole Dogme film I saw was the first one, so it's always associated in my mind with well-made European depression.

Autonomy and Abortion

Surely it is entirely sensible, and not uncommon in the Anglo-American tradition of criminal law, to hold that an autonomy interest is insufficient to override the state's attempt to stymie a particular conduct, but that the autonomy interest is not irrelevent to questions of punishment. That is what it means to say that the autonomy interest is outweighed rather than ignored.

I am little unclear about what in the criminal law Will means; I cannot immediately think of an act that is prohibited to perform on another but legally unpunishable to perform on oneself or to have procured from another (indeed, one reading of Lawrence is that certain acts constitutionally protected when occurring between two people still would be prohibited if onanistic). Certainly there are competing interests recognized in criminal law, but my understanding is that these tend to end up in either-or decisionmaking: either it was self-defense and no crime, or homicide and a crime. Juries may tend to split differences, but rarely by legal instruction. (I'd consider the "guilty but mentally ill" option available in some jurisdictions to be an example of an unfortunate cop-out provided by the law.)

Similarly, Will's conclusion

Quaker's and PG's points may well establish that abortion regulations ought to be reformed, but they fail to establish at all the accusations of bad faith that started this exchange. People make messy and imperfect moral compromises; what else is new?

fails to note that ex ante rule-making that does not recognize the consequences of itself is either stupid or in bad faith. If the proponents of "punish the doctors but not the women who seek their services" were pushing their policy because they saw it as the best way to ensure women with unwanted pregnancies had unsafe abortions, I would deem them to be acting both intelligently and in good faith, albeit immorally. To promote such a law under the guise of kindness to women, however, strikes me as so obviously unlikely to accomplish its supposed goals, that I find it implausible that any thinking person could consider it thoroughly and still do it, except in bad faith. I can understand how it superficially would sound like a great idea: stop women from getting abortions, but don't punish them when they attempt it. In the real world, it's more likely to be a compromise that allows politicians to satisfy as much of their disagreeing constituencies as possible, without any sincere effort to make a good law.

September 06, 2006

Sympathy for the Aborter

At Crescat, "Quaker" and Will Baude are re-treading old ground, and I continue to agree with Quaker rather than Will. Even with the authority of Jeff Rosen behind him, I still don't agree with Will's sympathy with the thought process of those who claim to believe that fetuses are persons with a right to life, and who would imprison physicians for performing abortions, but not penalize the women who solicited the abortions. The popular tendency to demonize the supplier rather than the consumer of a morally questionable good or service always annoys me. Why is the marijuana seller, if we assume that sale of an illegal drug is his only crime, worse than the pothead? the producer and actors in pornography worse than those watching it? Will says, "Presumably what makes abortion different, in the eyes of those who are pro-life but don't believe in maternal criminal liability, are the very powerful interests in bodily integrity, autonomy, mercy to the desperate or the weak, and so on-- the very arguments that pro-choicers make on the political scene every day!" He also quotes Rosen:

The truth is that many Americans who believe that life begins at conception also believe that it would be cruel to punish women who are desperate enough to perform abortions on themselves, and cruel also to punish women criminally for seeking illegal abortions from doctors. The laws are designed to deter doctors from performing abortions and therefore to make abortions more difficult to obtain; at the same time, many citizens believe that women who manage to obtain abortions anway should not be imprisoned for their decision. This position may not satisfy a canon lawyer-- it may not be consistent, in other words, with an absolute devotion to fetal life in all circumstances-- but it is a perfectly rational way of balancing a devotion to fetal life with other moral concerns, and it is a balance that many of our citizens ... embrace.

First of all, I don't think that mercy to the desperate or weak is a significant of abortion prohibitionists. If it were, we would see a push from the right to have laws like those in Europe, where there is legally less "abortion on demand," but contrary to Justice Scalia's belief, functionally greater access for most women who seek an abortion than there is in the United States due to state funding. Even in Finland and the UK, which are more restrictive than most of the continent, abortions can be obtained for "economic or social reasons." If desperation seems a sufficient justification for an abortion, someone who is truly merciful and compassionate toward women would want a system in which they could seek an exemption from the general prohibition, have a safe, legal abortion performed, and avoid the wire hanger cliche altogether.

I'm always appalled by prosecution of doctors who are treating the patient's health as the top priority, but apparently cruelty toward them is morally acceptable under Will's and Rosen's hypothesis of the pro-life mind. To create a system in which a doctor, who succumbs to a desperate woman's pleas that he abort the fetus she is carrying or else she'll do it herself, becomes a felon, strikes me as either stupid or very politically clever indeed. Just as it's politically easier to pick on the plaintiff's bar that brings questionable lawsuits than the juries that reward them, it's politically easier to decry the "abortion industry" than women who feel the need for an abortion. As far as I know, no abortionists are in my acquaintance, but women who have had abortions are. If we have a law that says the fetus is a legal person and the murderer thereof can be prosecuted, except when it is the person discharging herself of the pregnancy, we won't be creating a higher regard for fetal life; we'll simply be creating a more dangerous environment for ending such life. Instead of procedures that use anesthetic and likely minimize pain for the fetus as well as the woman, we'll have more women trying to self-abort, resulting in incomplete abortions and the potential for women to be legally restrained from finishing the job.

Unlike Rosen, I cannot endorse such a position as a rational balancing. The actual effects are too absurd, and imply that either people who hold that position never have bothered to think about its consequences, or hold the position to sound merciful while actually making things worse. At least if both the pregnant woman and physician were penalized, each would have a motivation not to report on the other; under the proposed regime, women who were disgruntled with their physicians could have a nasty revenge by reporting them as abortionists, with no cost to the women themselves.

Keeping Up with the Curve

The February article on one of Alito's clerks somehow escaped my attention, perhaps because the bulk of it isn't very interesting. There is one bit at the end that raised a brow:

Justice Alito, whose own paper trail was substantial, is willing to hire clerks who come with their own documentary record.
Other justices have been more wary. In 1966, for instance, Justice William J. Brennan Jr. withdrew an offer to a clerk, Michael E. Tigar, after pressure from conservative groups who took issue with Mr. Tigar's liberal political views.

In 1966, undersigned counsel met with Justice William J. Brennan, Jr., in the Justice’s chambers. The Justice had selected me as his law clerk, but some controversy had arisen. The Justice asked whether it was true that I had attended a Communist training camp in New Jersey. I replied that I had not, and indeed had never been in New Jersey. Much later, it turned out that the FBI had been feeding the Justice alleged “intelligence” information about me. This information was false. I lost my job. Many years later, the Justice apologized. Later, in a Freedom of Information Act request, I received military intelligence information that had not been declassified until 1978. Here are two quotes from this “classified” material, deemed vital to the national security back in 1966 and 1969. The intelligence report, from the Sixth Army HQ, was titled “Oliver!” and read in part as follows:

"Oliver Twist won the awed admiration of his fellow orphans when he had the supreme audacity to take his empty porridge bowl back to ask for more. Oliver, apparently, has his counterpart among our young radicals. In 1966, Michael TIGAR as a candidate for the post of law clerk to US Supreme Court Justice William J. Brennan, Jr. The appointment fell through when Brennan was apprised of TIGAR’s left-wing background."
The report then cites an earlier dispatch, which I never received, titled “Tigar in the Courts -- Almost” and dated July 1966. The 1969 report concluded:
"TIGAR may still be as radical as he ever was, but even if his political position has changed, he may find that his widely publicized left-wing activities as a young man will plague him far into the future. This is a bitter lesson many of today’s young radicals may have to learn."
In the intervening years, I have litigated many cases involving “intelligence” information, and time and again the intelligence agencies have hidden falsehood behind the veil of secrecy. The stakes in this criminal case are too high to abandon any part of the judicial function to executive discretion.

Tigar has managed to have a high-profile career even without SCOTUS on his resume, and having gone the public interest and academic route, wouldn't have been eligible for a fat law firm clerkship bonus anyway.

About nine months after the rest of the country, the New York Times discovered that first-year associate salaries have gone up, though the stale story was packaged as news by timing the article to the September influx of first-year associates. And though a Cravath hiring partner probably knows more about the economics of this market than I, I still wonder at the statement that "'law firms are getting bigger at a faster rate than law schools,' creating a growing demand for lawyers and commensurate salary increases." There are huge numbers of people graduating from law schools every year; what I suspect the partner really meant was "law firms are getting bigger at a faster rate than top tier law schools." Based largely on an LSAT score and undergraduate grades -- the determinants of law school admission -- the firms mentioned in the article go deep into what are considered elite law schools, scooping up even those with mediocre grades, and then draw more and more shallowly until they reach the point of refusing to consider some candidates at all.

Since I incline to Armen's view that students' manifested abilities probably don't differ all that much across school rankings, a more sensible response to an greater need for associates would be not to increase salaries (if you're of a mind to go BigLaw in the first place, I doubt that the $10k or $20k increase is going to be what kept you from Legal Aid) but simply to hire a greater number of associates, with more willingness to accept graduates from schools that teach law perfectly well without making the first page of the US News report. After all, if the top tier law schools start having larger classes, they're getting the additional students from Tier 2 schools. Instead of inflicting even bigger class sizes and student debt on future associates, Cravath should start interviewing at Rutgers and the University of Houston law schools.

Of course, this won't work because law firms are convinced that their clients believe they're paying, not for more professional development -- the conclusion

Another concern is whether firms will reduce the time their associates are allowed to spend on professional development during the first year and increase their billable hours to compensate for the higher starting salaries. Ms. Berney of Proskauer and Ms. Korby said that was not the case at their firms. Ms. Korby even said the increases had an opposite effect.
“When the pay started escalating so rapidly in ways that are shocking to those who have been in the compensation area, we decided we had to put additional time and money into training,’’ she said. “Our clients are looking at those coming through the door being paid, well, startling amounts. And they expect them to be the best they can be.”

didn't leave an impression of a serious analysis -- but rather for expensive diplomas. If a firm isn't staffed with lawyers who graduated from the most prestigious law schools, it is assumed that clients will balk at paying for what is assumed to be subpar legal talent.

I'd have to know a lot more than I do about the difference between responsibilities given to staff attorneys versus associates, and how well the former actually could perform the same work as the latter, but my guess is that clients are buying results more than process, and hires from lower-ranked schools actually could do pretty much everything that achieves those results. Most legal practice seems to demand persistence rather than vast ingenuity, except perhaps some areas such as appellate and tax practice, which require truly twisted minds.

Hey Lawrence Lessig

My understanding was that the Sonny Bono Copyright Term Extension Act of 1998 protected Disney's trademark on Mickey Mouse, but I'm not clear on whether this is purely for Mickey's image or also for his name. If the latter, if someone uses "Mickey Mouse" as a pejorative adjective in order to attack Disney or its subsidiaries, could Disney sue for unauthorized use of the trademark, or is "Mickey Mouse" now recognized as part of the English language? I've gotten so unmotivated to think about politics lately that the above query is the main reaction I had to an e-mail with the subject line "ABC: Stop 9/11 Mickey Mouse Tale":

Tell ABC to Cancel Their Inaccurate and Slanted Sept. 11th Program
ABC has decided to honor the national memory of Sept. 11th by giving six hours of prime-time coverage to the wildly inaccurate viewpoints of an avowed conservative partisan. Tell them to cancel this show. On September 10th and 11th, ABC is planning to air a "docu-drama" called "Path to 9/11," which is being billed as "an objective telling of the events of 9/11." In fact, the film was written by an unabashed conservative who twists the facts to blame President Clinton. ABC's new six-hour film was apparently screened in advance only to conservative bloggers and journalists -- and received extensive praise from none other than Rush Limbaugh. The film is apparently also riddled with factual errors and distortions; former counterterrorism czar Richard Clarke has completely refuted one of the key scenes in the show. It's simply stunning to think that as this fall's election approaches, a major television network would devote six hours of prime-time programming to air such a slanted and inaccurate program.

(I have a liberal knee-jerk against telling anyone to cancel almost any form of speech; supporting more speech as a corrective to bad speech is too deeply ingrained. At most, I'm in favor of civil defamation law that permits a person injured by such claims to receive compensation, which wouldn't work here because anyone mentioned negatively in this film will be a public figure.)

UPDATE: In an odd coincidence (or is it Liberal Media Bias?), NBC informs us that it's actually been under the Bush Administration that the U.S. military has been too touchy-feely sensitive to strike at the Taliban.